Which Employers Are Covered?
An employer is any individual, partnership, association, corporation or business trust or any person or group of persons, or a successor thereof, that employs another person, including any such entity or person acting directly or indirectly in the interest of the employer in relation to the employee. Employers must also be “covered enterprises,” which is defined as an Airport Hospitality Operation, a Hotel or an Event Center. These terms are all separately defined in the ordinance as well. More than one entity may be considered an employer. Finally, in some instances, a change in ownership may remove an employer from being subject to this law.
Which Employees Are Covered?
First, employees are considered those who work for a “covered enterprise,” working within the City of Philadelphia, who is non-exempt, in other words overtime eligible. This includes full-time, part-time, seasonal and temporary workers and employees who provide food and beverage service and make over 50% of their income from service charges or commission.
Second, the protections apply to “laid off employees,” who are defined as those who were:
- employed for 6 months or more from January 31, 2019 – January 31, 2020, and
- whose most recent “separation from active service,” occurred between January 31, 2020 and January 31, 2022; and
- were separated due to a government shutdown order, lack of business, reduction in force or other economic, non-disciplinary reasons.
What Is Required?
Employers must offer each Laid-Off Employee any job position which becomes available for which the Laid-Off Employee is qualified. The ordinance sets forth the manner in which the offer of employment should be made.
Who Is Qualified?
A laid-off employee is qualified if s/he held the same or similar position at the covered employer at the time of the most recent separation from active service with the employer or is qualified for the position with the same training the employer would provide to a new hire for that role.
In What Order Should Employers Extend Offers?
Employers shall first offer employment to employees who previously held the same or similar position, and then to those who are qualified to do so as defined above. This law also mandates seniority preference. Where more than one employee is entitled to an offer, the employer shall provide the offer to the employee with the greatest length of service for the employer. The ordinance also includes specific time periods for the employee to accept the offer and return to work, as well as guidance for time-sensitive positions.
If an employer hires someone other than a Laid Off Employee on the grounds of lack of qualification, it must provide written notice within 30 days to the Laid Off Employee identifying who was hired and the reasoning for the decision.
Anti-Retaliation and Liability
Like the predictive scheduling ordinance, there is an anti-retaliation provision that prohibits employers from taking adverse action against employees for exercising their rights under this ordinance. There is also a rebuttable presumption for adverse actions taken within 60 days of an employee exercising their rights under the law. In addition, the law includes a private right of action, however, an employee must first file a complaint with the Department of Labor. Penalties for violations include back pay, rehiring, other compensatory damages and attorneys’ fees and costs. The clause for attorneys’ fees is significant.
Regulations that, hopefully, will clarify some of the terms within the ordinance are forthcoming. Finally, the new law has an expiration date of December 31, 2025.
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